The Historic Role of Boards of Health in Local Innovation: New York City’s Soda Portion Case

By Lawrence O. Gostin, Belinda H. Reeve and Marice Ashe

Abstract

Childhood and adult obesity pose major risks for cancer, diabetes, and cardiovascular disease, with the poor and racial minorities suffering from disproportionately high burdens of obesity and chronic disease. With current policies failing, cities and states have moved forward with creative prevention measures–-with boards of health driving policy innovation in many local jurisdictions. The New York City Board of Board of Health’s (NYCBH) soda portion limit pushed the boundaries of innovation, but was struck down on June 26, 2014 by New York State’s highest court, which held that the Board trespassed on the City Council’s authority.
The Court’s decision ignored the critical role of local health agencies in responding to 21st century public health threats, including epidemics of obesity and chronic disease. The Court narrowly construed the NYCBH’s authority, characterizing its powers as administrative, and thus potentially stifling local innovation. The decision also obscured the fundamental truth that public health policymaking requires complex trade-offs and incremental action, as well as a multifaceted approach to reducing population weight gain. Policymaking often relies upon limited evidence, and agencies experiment with novel ideas while also transforming social norms and pushing the boundaries of public opinion. Although the portion rule would disproportionately affect disadvantaged individuals who drink the largest amount of soda, government’s failure to act represents a greater injustice. Enhancing opportunities to choose a healthy life path better serves the interests of justice, but the Court’s judgment takes us further away from realizing this social aspiration